QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
Sitting as a Deputy High Court Judge
| UK COAL MINING LIMITED
|- and -
|SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
DURHAM COUNTY COUNCIL
James Strachan (instructed by Treasury Solicitor) for the 1st Defendant
Alan Evans (instructed by Durham CC Legal Dept.) for the 2nd Defendant
Hearing dates: 5 & 6 June 2013
Crown Copyright ©
His Honour Judge Cooke QC :
"If regard is to be had to the development plan for the purpose of any determination to be made under the Planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise".
"Within the exposed coalfield area there will be a presumption against proposals for open cast mining of coal and/or fireclay unless:
a) they are environmentally acceptable, or can be made so by planning conditions or obligations; or
b) they provide local or community benefits which clearly outweigh the adverse impacts of the proposal. In assessing such benefits particular regard will be had to:
i) the contribution of the proposal towards the comprehensive reclamation of areas of derelict or contaminated land;
ii) the avoidance of sterilisation of mineral resources in advance of development which is either subject to a planning permission or allocated in an adopted development plan (in accordance with Policy M15)
iii) their contribution (or otherwise) to the maintenance of high and stable levels of economic growth and employment;
iv) the need for supplies of fireclay to serve local brickworks.
All proposals should avoid the unnecessary sterilisation of other minerals, particularly fireclays and brick clays"
I have found it helpful in this case to step back and construe the policy which I have set out and identify how it might be used to provide a sequential decision making process by a decision-maker in a case of this type.
"… the Government takes the view that, although some sites are capable of being well restored, opencast coal mining can be extremely damaging to the environment and amenity of a locality whilst it is taking place, and the restored landscape can take many years to mature".
"The Government recognises that the costs and benefits of an opencast proposal can best be assessed by the communities and local authorities who know the area best and are most directly affected."
I consider that these passages of central government advice constitute, respectively, a stressing of particular features of open cast mining development which must be taken into account at all stages of the decision making process, and an indication of a desirable evidential weighting in favour of the local assessment in relation to the evaluation of costs and benefits, again of potential relevance at all stages of the decision making process.
The former passage is consistent with a policy which incorporates a negative presumption as does M7. The latter passage is of clear relevance to the approach to be taken in relation to the decision as to whether the factors identified in M7 a) or b) exist.
The key sections of the decision letter are to be found at paragraphs 10 to 19 inclusive. I detect no error in paragraphs 10 to 14 inclusive but I am troubled by paragraph 15. That paragraph reads:
"Having said this, it is acknowledged that there is no presumption against surface working, where the mineral planning authority (MPA) concludes that the predicted levels of environmental harm would be acceptable. However where the MPA judges there to be material harm to the environment the presumption against changes the onus of justification from one where the MPA has to defend its reasons for refusal to one where the onus falls to the developer to demonstrate why the MPA's reasons are unjustified and, if necessary, why any benefits clearly outweigh the identified harm found".
This is, in my judgement a serious failure correctly to understand the policy framework against which the relevant decision had to be taken. Are there further indications that such a mistake has led the Inspector into error?
"The local view must carry significant weight, even in the appeal situation. Not to do so would render the presumption meaningless"
are difficult to reconcile with a proper understanding of the policy context. There is no automatic connection between the existence of the presumption and the giving of evidential weight to the local assessment. Reading paragraphs 15 and 18 together reinforces the impression that the Inspector has erroneously identified the mineral planning authority's assessment as the trigger for the negative presumption, which it is not.
The section of the Inspector's decision letter dealing with landscape issues, paragraphs 20 to 53 inclusive is conventional. Paragraph 52 is capable of criticism on the basis that it recites an argument which can be used to justify an adverse conclusion in relation to all but the most enormous opencast site. Although paragraph 53 commences "Thus the clear conclusion…" the reasoning is not particularly clear. The relationship between the conclusion reached in relation to landscape and the policy context is not specifically spelt out.
It is perhaps significant that in both of these passages "objection" rather than "reason for refusal" is the specific focus. I am very conscious of the need not to over construe a decision letter. However, where there appears to have been a misconstruction of the policy context, a close reading is unavoidable. What concerns me here is that the way the decision letter is written seems to owe less to an identification of whether the negative presumption arises, with reference to policy M7 a) and b) than to an analysis, in broad terms of the merits and de-merits of the proposal, judged against the background of a negative presumption.
My concerns in this regard are magnified by the whole structure of the decision letter which seems inconsistent with the need to identify whether or not the negative presumption applied.
Need is not a topic the examination of which can assist with the identification of whether or not the negative presumption arises – see policy M7 a) and b).
"The first observation is that each tonne of indigenous coal won, means one less that needs to be imported and that has positive implications for the U.K. balance of payments. Clearly this is so, but the presumptive policy and lack of a target supply figure do not suggest that this should be accorded great weight, and certainly not beyond maintaining surface won supplies at roughly current levels.
…To include in the balance national benefits from factors such as balance of payments, as proffered by UK Coal, should count for very little. If they were seen as crucial then these would again undermine the negative presumption and, almost certainly, rekindle hope for winning coal at every rejected site, especially the larger ones".
"The key point is that local groups and people would much rather wait for any benefits than suffer the loss of the local asset for the 10-15 years of the coal operation and meaningful restoration".
I am not sure what to make of this passage. In what context is this a key point? Not it would seem in deciding whether the negative presumption in policy M7 applies because paragraph 107 proceeds on the premise that it should not be undermined. There appears to be some confusion between the evaluation of ecological consequences and questions of local perception. It may not be particularly significant but it strikes me as another example of the lack of precision and structure which has rendered dealing with this challenge rather difficult.
"On the other hand, in a situation like this, where the County Council and local groups and individuals are unified in their objections, based on their understanding of the prevailing planning policy, then greater weight can be given." (My emphasis).
It is what planning policy is, not what particular participants in the process believe it to be, which is relevant. I do not consider that there is anything in the Localism Act 2011 which tended to support the objections to this development, as the Inspector hints that there was. It must be the specific provisions of a statute that need to be looked at in deciding questions of relevance to a particular proposal and not, as seems to have been considered here, some general impression of the likely direction of legislative thinking.
"Perhaps crucially in this case, is the rejection of the offers by the County Council as well as the local communities and population. This says firmly that the benefits to the local community would not clearly outweigh the harm. Looked at another way, the offers or outcomes would not be so beneficial as to justify the intrusion and environmental disbenefits …" (my emphasis)
The question which arose in this area had in my judgement to be determined objectively, the decision maker forming his own view (albeit giving considerable weight to the local view) in relation to the benefits/adverse impacts balance, having particular regard to the specific considerations identified in policy M7 b) i) to iv). Paragraph 150 seems to dispose of this issue primarily, if not exclusively, by reference to local perception. Although I can see that the use of the word "clearly" in policy M7 b) might well lead a decision maker in this area to be significantly interested in the local perception of the benefits/adverse impacts balance I do not consider an emphatic answer in that area from the quarters referred to excused the need for an objective assessment. That must in my judgement be particularly so in a case such as this where those who reject the benefits case are also who have advanced arguments in relation, for example noise, dust and blasting which have been rejected by reference to objective standards.